(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES 7n DISPUTE: (Soo Line Railroad Company

1) Carrier violated the seniority and overtime provisions of the effective Clerical Agreement when it assigned a junior employe to Claimant, Janice Daniel, to the performance of overtime on August 31, September 2, September 11, and September 25, 1976, in the Revenue Accounting Department in the General office.

 2) Claimant, Janice Daniels, shall now be compensated at tte rate of time and one-half at the penalty rate of $9.97 per hour for 2 hours on August 31, 1976, 2 hours on September 2, 1976, 6-374 hours on September 11, 1976, and 8 hours on September 25, 1976, for a total of 18-3/4 hours and total compensation of $186.94.

 OPINION OF BOARD: In effectuating the terns of the collective bargaining
 agreement ("Agreement"), the parties established
 "Seniority Districts," within which seniority rosters were prepared to
 permit employes listed thereupon to exercise their rights as agreed upon
 by the parties and set out elsewhere under the Agreement. One such District
 (Number 2) contained represented employes in the Revenue Accounting, Ista
 Entry and Car Information offices.

 On the dates of August 31 and September 2, 11 and 25, 1976 cvertime was required to be worked on not germane to this case, the incumbent of that position was unavailat,le to perform any such overtime assignments, two of which were immediately past the Clerk's regularly assigned shifts and two on her regularly scheduled days off. Such assignm Accounting office who apparently possessed the necessary skills to perform the work involved. The Claimant herein occupied a Clerk's position (Customer Accounting Correction and Control), also in the Revenue Accounting office, and possessed a higher position on the seniority roster in District 2 than did the Clerk to whom such work was assigned. There is no dispute that the Claimant also possessed the s office.
                    Docket Number CL-22362


According to the Organization the Carrier was required to assign such work to the Claimant, given her skills to perform such work and her superior standing on the seniority roster vis a vis the Clerk to whom such work was assigned. It cites Rule 3 - Seniority Datum, (e) for authority in this regard:

        "Seniority rights of employees to vacancies, new positions, extra work, or to Perform work covered by this agreement shall be governed by these rules."


The Carrier rejects such claim, contending that neither Rule 3(e) nor any other in the Agreement restricts its right to make such assignment.

 Nothwithstanding the organization's contention that Rule 3(e) constitutes a general rule establishing seniority as the condition upon which overtime opportunities are to be offered -- as opposed to (or in the absence of) a specific rule setting out some other order in that regard, we are unable to conclude that this provision has such significance. Neither its construction nor placement in the Agreement supports the Organization's contention. Inst to be applied, 3(e) establishes that such rights -are to be "governed by these rules," which could be construed restrictively to paragraphs (a) through (d) of Rule 3, or broadly to the other Rules in the Agreement. Granting its application to the entire Agreement, no Rule has been cited that acts to deny the Carrier the right to assign overtime as it did in this case. Reference was made to Rule 49 - Overtime (f), but the require-

 ments of this provision were met by the Carrier's offer in the first in- "
 stance of such overtime opportunities to the incumbent of the position
 which such overtime was worked:

        "Except as provided by paragraph (e) above and when it is practicable and will not interfere with the operation the employee whose regular duties are to be performed on call or overtime shall have preference to such work."


(Paragraph (e) as cited in this provision is not applicable and thus not reproduced here.) Considering the Agreement generally, we note that Rule 7 - Exercise of Seniority - also sets forth the terms by which seniority rights are applied:

        "Seniority rights of employees covered by these rules may be exercised only in case of vacancies, new positions, or reduction of forces, except as otherwi provided in this agreement . . . ."

          Award Number 3101 Page 3

                  Docket Number ('.L-22362


There has been no showing that other provisions of the Agreement reserve overtime on the basis of seniority under the circumstances prevalent in this case.

 While it may be galling to employes not to be offered overtime opportunities where, as herey they are qualified] more senior and apparently proximally located to w we cannot ascribe more status to such seniority rights than are the result of negotiations between t to be a provision which reserves rights to employes in the Claimant's status under the circumstances existent in this case.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes withir. the meaning of the Railway Labor Act, as approved June 21y 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: 490&av &64(rz~.=
        Executive Secretary


Dated at Chicago, Illinois, this 15th day of December 1980.
                LABOR MEMBER'S DISSENT


              AWARD 23101, DOCKET CL-22362

              (Referee Scearce)


Award 23101 is ridiculous: The parties, since the adoption of their first agreement over sixty years ago, have continuously been governed in the assignment of extra work by a rule similar or identical to Rule 3(e), reading:

 "(e) Seniority rights of employees to vacancies,
 new positions, extra work, or to perform work
 covered by this agreement shall be governed by
 these rules." (emphasis added)
 On several dates in August and September of 1976 extra work was
 required by the Carrier. This extra work was not assigned to
 Claimant, a senior employe to the employe used. Carrier's failure
 to use Claimant violated the clear and explicit requirements of
 Rule 3(e).
 Referee Scearce attempts to justify his decision with rhetoric on contract construction dealing with conflicts between general rules and specific rules. He holds that Rule 3(e) is a general rule. He then finds that there are specific overtime situations dealt with in the agreement by specific rules - his reference to Rules 49 and 7 for instance. He does not however, find that the agreement has a specific rule dealing with the assignment under the facts herein. At this point a judicious person would have held that in the absence of a specific provision modifying the general provision of Rule 3(e) the general provision. of Rule 3(e) must apply and the claim must be sustained. Logic would compel no other conclusion.
      It is outrageous to write:


" .. no Rule has been cited that acts to deny the Carrier the right to assign overtime as it did in this case." Also, it is idiotic to write:

 "There has been no showing that other provisions of the Agreement reserve overtime on the basis of seniority under the circumstances prevalent in this case." when it is manifestly clear that Rule 3 requires the general assignment of overtime on the basis of rule provides that certain types of overtime are to be assigned differently. The Referee's remarks m the tenets of contract construction.
 The Referee's apologetic dicta in the last paragraph of the Opinion does not overcome the fact that his award is palpably in error and does violance to the basic tenets of contract construction. It is fortunate he saw fit to limit his decision to the circumstances existing in the single particular case he had before him.

                                v


                              Y i

                              J. Fletcher, Labor Member


                          2 Labor Member's Dissent to

                          Award 23101, Docket CL-223